Larson's Spotlight on Fraud, Attorney's Fees, Retaliatory Discharge, and Going and Coming. Larson's surveys the latest case developments that you need to know about. Thomas A. Robinson, the staff writer for Larson's Workers' Compensation Law, has compiled the list below.
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NY: Disabled Corrections Officer Disqualified From Further Benefits After Failing to Disclose Status as Horse Trainer
A New York appellate court has affirmed a decision by the state's Workers' Compensation Board that found a claimant had knowingly committed fraud by claiming that his activities as a horse trainer were no more than a therapeutic hobby and, pursuant to Workers' Compensation Law § 114-a (1), permanently disqualified the claimant from receiving wage replacement benefits after April 2009. The appellate court observed that the claimant was admittedly licensed to train horses, and the record revealed that he did so during the racing season each year at the Monticello Raceway through 2010. According to the court, the claimant worked a part of every day of the week in that capacity, expended significant sums of money on horses in his care, bought and sold them, and earned income when horses he trained or owned performed well in races. Despite this extensive activity, however, he repeatedly reported to the employer that he had not engaged in any paid or unpaid work since his injury. Substantial evidence supported the Board's finding that the claimant had violated §114-a.
See Cartuccio v. New York St. Dep't of Corrections, 2013 N.Y. App. Div. LEXIS 4320 (June 13, 2013) [N.Y. App. Div. LEXIS 4320 (June 13, 2013)]
See generally Larson's Workers' Compensation Law, § 39.02 [39.02].
FL: Court Finds Part of Florida's Attorney Fee Limitation Statute Unconstitutional
Effective October 1, 2003, § 440.34(3), Fla. Stat. permits "any party" that prevails in a workers' compensation matter to tax costs against the nonprevailing party. Subsection (2) of the same statute indicates that "[i]n awarding a claimant's attorney's fee, the judge of compensation claims shall consider only those benefits secured by the attorney." Intertwined with those provisions is § 440.105(3)(c), Fla. Stat., which generally provides that an attorney may be guilty of a first-degree misdemeanor if the attorney receives payment for work relating to a workers' compensation case, unless the payment is approved by a Judge of Compensation Claims. A Florida appellate court recently held that to the extent that those statutory provisions prohibit a claimant from retaining counsel to defend a motion to tax costs against the claimant, those statutes infringe upon the claimant's constitutional rights under the First Amendment of the Constitution. The court indicated that among the legislative goals behind the statutes was the prevention of undue and unnecessary diminution of a claimant's benefits. Those goals were not undercut when a claimant sought representation to avoid an imposition of costs by the employer/carrier. The court added that while § 440.105(3)(c) prohibited attorneys from receiving unapproved fees, § 440.34 did not preclude a JCC's approving a fee agreement when a claimant chose to obtain legal representation to aid in defense against an E/C's motion to tax costs.
See Jacobson v. Southeast Personnel Leasing, Inc., 2013 Fla. App. LEXIS 8936 (June 5, 2013) [2013 Fla. App. LEXIS 8936 (June 5, 2013)].
See generally Larson's Workers' Compensation Law, § 133.03 [133.03].
KS: Employer's Attempt to Shorten Time For Filing Retaliatory Discharge Claim is Void As Against Public Policy
Observing that the 2-year statute of limitations stated in K.S.A. 60-513(a)(4) applies to a common-law retaliatory discharge claim, the Supreme Court of Kansas, answering a certified question from the U.S. Court of Appeals for the 10th Circuit, recently held that a contractual provision in an employment agreement that shortens the statute of limitations for filing a retaliatory discharge claim based on the employee's exercise of statutory rights under the Workers Compensation Act is void as against public policy.
See Pfeifer v. Federal Express Corp., 2013 Kan. LEXIS 536 (June 7, 2013) [2013 Kan. LEXIS 536 (June 7, 2013)].
See generally Larson's Workers' Compensation Law, § 104.07 [104.07].
CT: Expanded Going and Coming Statute For Police Does Not Extend to Injuries in Residential Driveway
Connecticut has a special statute [Conn. Gen. Stat. § 31-275(1)] that expands the course of employment of a police officer so as to encompass his or her "departure" from (and return to) his or her place of abode to duty. A Connecticut appellate court recently held that the state's Workers' Compensation Review Board did not err when it determined that a police officer's injury, which occurred when he slipped on a patch of ice located on his driveway as he walked to his motor vehicle to drive to work, was not compensable. The court acknowledged that § 31-275(1)(A)(i) expanded the course of employment of a police officer so as to encompass his departure from his place of abode to duty, but the court also observed that pursuant to § 31-275(1)(E)(i), injuries sustained at the officer's place of abode were not compensable. Drawing a fine line, the court indicated that the commute did not begin when the police officer or firefighter broke the plane of his or her front door: an injury occurring in a driveway did not occur in the course of employment.
See Perun v. City of Danbury, 2013 Conn. App. LEXIS 306 (June 11, 2013) [2013 Conn. App. LEXIS 306 (June 11, 2013)].
See generally Larson's Workers' Compensation Law, § 13.01 [13.01].
Source: Larson's Workers' Compensation Law, the nation's leading authority on workers' compensation law.
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